Why Lawyers Make Bad Judges

By Ralph Warner

The idea that judges should be lawyers is deeply ingrained in American culture.
Indeed, the law requires it in many parts of the country. But this approach
to selecting our judicial officers is both preposterous and dangerous.

Law School: No Place to Grow Judges

Most lawyers do not have the knowledge and skills needed to handle the issues
passing through our courts. To understand why, spend a few days at a law
school, where future lawyers learn to solve problems by applying a formalistic,
logic-chopping analysis to a mish-mash of old court cases, following an
educational model that has changed remarkably little since World War I.

By claiming that correct decisions can be made by applying age-old rules
without necessarily understanding the technical basis of the facts in a dispute,
this method closes rather than opens the mind. For example, future judges
are trained to feel comfortable deciding a case involving the claimed theft
of a process to increase the output of a power plant without understanding
how a steam turbine works.

No Schools for Judges

But surely lawyers receive additional training when they become judges? Don't
count on it. Except for a few brief cram courses after they are appointed
to the bench -- most often as a reward for political loyalty, rather than
demonstrated competence -- new judges are on their own. More bluntly, if
your average veterinarian was as poorly trained as your average judge, you
wouldn't let Bowser within 100 feet of him.

Against this background, it hardly seems a radical notion that many non-lawyers
might make better judges than do our current crop of lawyers. Technical subjects
such as patents, copyrights, trade secrets and medical malpractice, in which
most lawyers are hopelessly illiterate, offer obvious examples of legal areas
where a non-lawyer with an understanding of the underlying technology would
be likely to make better decisions.

But instead of stacking the deck against lawyers by picking an area where
specialized knowledge is at a premium, consider one of the most common concerns
-- family law. Immensely important decisions involving the custody, visitation
and support of children are made every day against a background of enormous
interpersonal stress. Most new judges have no experience with family law,
since comparatively few have practiced in this area. And in most American
law schools, zero time is spent on the personal and family dynamics of divorce;
the one or at most two family law courses most law students do take focus
on who gets the money and property. Even that information is badly out of
date long before a law school grad is appointed to the bench.

And few family law judges get the benefit of on-the-job training. Precisely
because family court is a high stress, emotion-filled environment that they
are not trained to handle, most judges try to move on -- or rotate -- to
other types of cases as soon as possible. The result is there is no continuity
in an area that cries out for it.

Understanding this unique opportunity to shop for a more agreeable judge,
lawyers with deep-pocket clients often bring the same custody and visitation
cases back into court again and again. Sooner or later, a new judge with
no personal knowledge of what happened before may make a different decision.

Breaking the Stranglehold

There is an even more fundamental reason to break the legal profession's
stranglehold over our courts. Given our tripartite system of government in
which the judicial branch can nullify the acts of the others, allowing the
legal profession to enjoy almost absolute power over our courts invites the
arrogance and greed we currently experience.

The unhappy result is on daily display in America's courthouses, where few
forms, instructions or other consumer-friendly information is available to
help consumers accomplish even the simplest legal tasks. And most judges
shamelessly shill for their lawyer buddies by telling confused pro pers to
see an attorney if they ask for any information beyond the location of the
bathroom.

No Place to Go

Even worse, having lawyers as judges severely hampers citizens' rights to
purchase basic affordable legal services from competent non-lawyers -- often
called legal technicians or independent paralegals. As more consumers understand
that lawyers are wildly unaffordable and patronize these reasonably priced
non-lawyer services, practicing lawyers -- instead of lowering fees and improving
service -- appeal to their black-robed brethren to stamp out all non-lawyer
competitors. Most judges respond in one of two ways. Some dust off and enforce
unauthorized practice of law statutes passed by lawyer-dominated legislatures
in the 1930s. Others resurrect a centuries-old legal doctrine known as "inherent
powers," which claims that only the judicial branch can regulate law-related
transactions, in or out of court.

The result is that many non-lawyer form preparers are jailed and fined by
lawyer-judges (the fact that they wear a black dress and sit on a wooden
throne changes nothing), solely because they compete with other lawyers.
Even worse, in the scurry to put non-lawyers out of business, judges rarely
examine the quality of their work. So, for example, even if a non-lawyer
does a better job typing a divorce for $100 than a lawyer does for $1,000,
the non-lawyer is likely to go to jail while the lawyer goes to lunch with
the judge.

A Better Way

The solution is simple: Do away with the requirement that judges must be
lawyers. Instead, open up the occupation to all adults who can demonstrate
an appropriate level of competence. Appropriate standards of education and
work experience should be based on the subject matter to be judged, not some
poorly formulated idea that lawyers always know best. For example, as an
alternative to requiring a law degree, judges in our family courts should
be trained in the social sciences, with a concentration on how post-divorce
families can best work to raise healthy children. Learning mediation skills
-- taught in only a few law schools -- and studying the economic problems
created by divorce would also be of great value. This would likely produce
career non-lawyer judges trained to defuse tensions and help families arrive
at consensual solutions.

Supplement this with a six-month intensive course on domestic relations law
before allowing judges to pick up the gavel, and there is no doubt that they
would have a better grasp of handling cases than do our poorly-trained lawyers.

Finally, because non-lawyer judges would not be part of the local lawyer-buddy
network, this new breed of judges would be much more likely to crack down
on two big areas of current abuse: overcharging lawyers and judicial hostility
to pro pers. Both of these stains on American jurisprudence are damaging
the credibility of our courts and should be reason enough to end the lawyer
monopoly.

Side Bar--Lawyer Monopoly in the Big Sky--Montana Judges Hogtie Non-Lawyers

An independent paralegal based in Kalispell, Montana, recently attempted
to represent a physically handicapped man who couldn't afford a lawyer. Jerry
O'Neil relied on an 1871 Montana statute (MCA § 25-31-61) that allows
a party to a justice court action to be represented by anyone.

But O'Neil's pleadings were drowned out by the sound of the state supreme
court backpedaling.

First, the Montana Supreme Court ruled that, despite the clear language of
the statute, "any person . . . may act as attorney," it was a "one time only
grant of privilege" for a non-lawyer to appear. In other words, the court
barred non-lawyers from establishing a business to compete with lawyers.

Not satisfied with interpreting the statute to mean the opposite of its plain
language, the supreme court recently decided to eliminate it by judicial
fiat. This has taken the form of a proposed rule of court, Rule 13, which
does away with the clear statutory right of non-lawyers to represent people
in justice court.

In response to this grab of power, O'Neil and a group of non-lawyer activists
proposed legislation that would allow non-lawyers to serve as judges in Montana
and give non-attorneys majority status on the State Judicial Standards
Commission. Both bills died in the Spring 1993 session, but are likely to
be reintroduced in the future.

FOOD FOR THOUGHT

Many times the reason or purpose for events in our life initially escapes us,but I am certain we can find reason and/or purpose in everything that happens!

It takes a short time to learn to exercise power, but a lifetime to learn how to avoid abusing it.

We are no longer a country of laws, we are a country where laws are "creatively interpreted."